In re: The Malilangwe Trust

### Preamble
1
HMT 59-20
HC 342/19
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INRE: THE MALILANGWE TRUST

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 15 September 2020

Chamber Application for Registration of a Trust: Revocation of order in terms of rule 449 of the High Court Rules, 1971

Mrs Y Chapata, for the Applicant

MWAYERA J: On 2 January 2020 in chambers I granted the following order pursuant to perusing papers filed of record by Applicant’s Counsel. It is ordered that:

“On payment of the appropriate fees provided for in S.1. 187/2019 (item 12 of the Schedule r 2) the Notarial Deed of Trust M.A. NO. 2079/2019 be and is hereby registered with the court and a copy thereof shall be retained by the Registrar who shall issue a Registration Certificate of the Trust.”

When the Registrar sought directions to enable compliance with the order it dawned to me that the order I had issued was erroneously sought and granted. That erroneously issued order is incapable of enforcement as it has no legal basis for its issuance. The Registrar could thus not enforce it. Upon realising the error I communicated with the Applicant’s Counsel pointing out that the order issued had to be revoked in terms of order 49 rule 449 of the High Court Rules, 1971. Rule 449, deals with correction, variation and rescission of judgments and it states:

“1. The court or judge may, in addition to any other power it or he may have, mero

motu or upon the application of any party affected, correct, rescind, or vary any

judgment or order-

That was erroneously sought or erroneously granted in the absence of any party affected thereby,  or

In which there is an ambiguity or patent error or omission, but only to the extent of such ambiguity, error or omission, or

That was granted as a result of a mistake common to the parties

2.  The Court or a Judge shall not make any order correcting rescinding or varying a

judgment or order unless satisfied that all parties whose interests may be affected

have had notice of the order proposed. (underlining my emphasis)”

Upon detecting the anomaly in the order I had issued and having notified the applicant of intended revocation in terms of r 449 1 (a) ARW (2) the Applicant Counsel insisted the order was not erroneously granted and sought. The Applicant filed written submissions persisting that the order was properly issued and that the court was functus officio although acknowledging that in exceptional circumstances Order 49 r 449 allows variation, correction and rescission of judgments and orders.

It is worth noting that the Malilangwe Trust, the Applicant was registered with the Registrar of Deeds on 25 September 2019 in terms of the law. The Deeds Registries Act [Chapter 20:05] provides for such registration. Section 5 (b) is instructive. The Registrar of Deeds has power and duty in terms of s 5 (b) of the Act to examine all deeds or other documents submitted to him for execution or registration, and after examination reject any such deed or other document the execution or registration of which is not permitted by the Act or by any other law or, the execution or registration of which other valid objection exists. Section 5 (m) further shows the power and duties of the Registrar of Deeds. It reads

“register ante nuptial contracts, such notarial deeds of donation, including donation to be held in trust, and such other deeds having reference to persons and property within the area served by the deeds registry in question as are required or permitted by law to be registered.”

It is apparent from a reading of the relevant Act that the duty and power to examine all deeds submitted for registration and where appropriate to register such deeds is reposed on the Registrar of Deeds. The Act and Regulations provide for Certificate and Registration. The Certification was done by the office vested with the authority to do so. The Malilangwe Trust Deed was effected on 25 September 2019 under M.A NO. 2079/2019.

The subsequent application for Registration and Certification with the High Court and Registrar of the High Court respectively has no legal frame work. The Certificate is already procedurally and legally issued by the relevant Deeds office. The Registrar of Deeds has the power and mandate to register the Notarial Deeds. The statutory provisions are not ambiguous as they clearly do no give power to any other entity to Register Notarial Deeds. The Legislative intention is further pronounced by outlining the power enjoyed by the courts with respect to Notarial Deeds. Section 8 of the Deeds Registries Act empowers courts to cancel a Notarial Deed. There is no provision empowering the court to register Notarial Deeds of Trust and the Registrar of the High Court to issue certificates. The court has power on good cause shown in an application to compel the Registrar of Deeds to register a deed, but that does not give the court power to Register a trust deed with this court or order the Registrar of this court to register and issue a certificate for a Notarial Deed.

The Applicant Counsel sought to draw the attention of the court to the South African situation were s 4 of the Trust Property Control Act (NO. 57/1988 RSA) requires registration of all Trusts with the Master of the South African Supreme Court, I must hasten to mention that whereas the South African legal frame work allows for registration with the Master of the Supreme Court, the Zimbabwean legal frame work allows for registration of Notarial Deed with the Registrar of deeds. The fact that there is an Act in place which regulates the registration of Notarial Deeds and that the Applicant was registered in terms of the Act denotes that is the legal frame work within which registration is to be done. That the High Court has inherent jurisdiction to deal with any civil matter placed before it is not in dispute. The nature of application brought before the court is for registration and certification of an already certified Notarial Deed. It is not a law suit to enforce civil remedies. It is worth noting a Trust is not a legal persona. See Veritas v Zimbabwe  Electrical Commission and Others SC 103/20 in which the Supreme Court quoted with approval sentiments expressed in Crundal Bros (Pvt) Ltd v Lazarus N.O and Another 1990 (1) ZLR H, at 298 E wherein the court stated.

“I can see no reason why a Trust should be regarded as a ‘person’ for purposes of the regulations, when it is not regarded as a ‘person’ for other purposes”

See also Wilsa and Others v Mandaza and Others 2003 (1) ZLR H at 505. In the present case with the acceptance of the fact that a Trust is not a legal persona the invocation of inherent jurisdiction to deal with any civil matter over all persons and matters was misplaced. The application for registration of a Notarial Deed of Trust is not a lawsuit to address a wrong and or enforce civil remedies. The registration of a Notarial Deed of Trust is regulated by a legislative Act, The Deeds Registries Act [Chapter 20:05]. The relevant Act excludes registration and certification by this court. This leaves the order sought and issued by the court with no legal frame work. Unlike in situations of registration of legal practitioners where the court is empowered to register a legal practitioner and the Registrar of the High Court is empowered in terms of s 12 of S1 187/2019 to issue a certificate there is no provision for registration and certification of a Notarial Deed of Trust which in this case was registered and certified by the relevant authority in terms of the law.

I am alive to the fact that when a court has given a final order or judgment it becomes functus officio and may not revisit the decision except in exceptional circumstances as outlined in Order 49 r 449. Also in common law the High court has power to supplement, clarify or correct its judgment or orders from inherent jurisdiction to regulate its own judgments in the interest of justice. See Harare Sports Club and Another vs United Bottlers Ltd 2000 (1) ZLR 264 Hopcik Investments (Pvt) Ltd vs Minister of Environment Water and Climate (HH 336-16 HC 1796/14) ZW HH C 336 (01 June 2016).  It is important to note that the court has to regulate its own judgments and this among other salient factors includes issuing orders capable of enforcement. The court on being alive to an anomaly in an order is duty bound to immediately correct the error so as to ensure that the interests of the justice are observed. In this case in compliance with the codified position on correction variation and rescission of judgment, r 449 the applicant was notified of the considered revocation of the order erroneously sought and issued. Despite the résistance and opposition to the considered revocation it is my considered view that the circumstances of the matter call for invocation of r 449. The Notarial Trust Deed was registered by the Registrar of Deeds in terms of the law. The request for registration and certification by this court was with no legal basis or frame work. The order was thus erroneously sought and erroneously granted.

Accordingly the order issued under HC 342/19 is hereby revoked in its entirety.

Henning Lock, applicant’s legal practitioners